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EXHIBIT 4.1
2
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EVI, INC.,
AS ISSUER
AND
THE CHASE MANHATTAN BANK
AS TRUSTEE
------------------------------
FIFTH SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 12, 1997
------------------------------
$120,000,000
10 1/4% SENIOR NOTES DUE 2004
10 1/4% SENIOR NOTES DUE 2004, SERIES B
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TABLE OF CONTENTS
Page
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ARTICLE 1
INCORPORATION OF INDENTURE; DEFINITIONS . . . . . . . . . . . . . . . . . . 2
1.1 Incorporation of Indenture . . . . . . . . . . . . . . . . . 2
1.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
AMENDING AND MODIFYING PROVISIONS . . . . . . . . . . . . . . . . . . . . . 2
2.1 Amendments to Definitions . . . . . . . . . . . . . . . . . 2
2.2 Amendments and Modifications to Article IX . . . . . . . . . 3
2.3 Deletion of Article XII . . . . . . . . . . . . . . . . . . 3
2.4 Amendments to Certain Cross-References . . . . . . . . . . . 4
2.5 Amendment of Exhibit A: Form of Note . . . . . . . . . . . 4
2.6 Amendment of Exhibit B: Form of Exchange Note . . . . . . . 4
2.7 Deletion of Exhibit E: Form of Notation on
Security Relating to Guarantee . . . . . . . . . . . . . . . 4
ARTICLE 3
RELEASE OF SUBSIDIARY GUARANTORS . . . . . . . . . . . . . . . . . . . . . 4
3.1 Release . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Removal as Parties . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 4
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Full Force and Effect . . . . . . . . . . . . . . . . . . . 4
4.2 The Supplement. . . . . . . . . . . . . . . . . . . . . . 5
4.3 The Trustee . . . . . . . . . . . . . . . . . . . . . . . . 5
4.5 Multiple Counterparts . . . . . . . . . . . . . . . . . . . 5
4.6 Headings for Convenience Only . . . . . . . . . . . . . . . 5
EXHIBIT A Form of Note . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Form of Exchange Note . . . . . . . . . . . . . . . . . . . B-1
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FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE (this "Supplement"), dated and effective as
of December 12, 1997, is entered into by and among EVI, Inc. (formerly known as
Energy Ventures, Inc.), a Delaware corporation (the "Company"), and The Chase
Manhattan Bank (formerly known as Chemical Bank), a New York corporation, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
executed and delivered an Indenture dated as of March 15, 1994, among the
Company, the Subsidiary Guarantors and the Trustee (the "Original Indenture")
providing for the issuance by the Company of $120,000,000 aggregate principal
amount of the Company's 10 1/4% Senior Notes due 2004 and 10 1/4% Senior Notes
due 2004, Series B (collectively, the "Securities") and pursuant to which the
Subsidiary Guarantors have agreed, jointly and severally, to unconditionally
guarantee the due and punctual payment of the principal of, premium, if any,
and interest on the Securities and all other amounts due and payable under the
Original Indenture and the Securities by the Company ("Indenture Obligations");
WHEREAS, the Company, Prideco, Inc., a Texas corporation and a wholly
owned subsidiary of the Company ("Prideco"), and the Trustee executed a First
Supplemental Indenture (the "First Supplemental Indenture"), dated as of June
30, 1995, pursuant to which Prideco became a Subsidiary Guarantor and agreed to
unconditionally guarantee the Indenture Obligations;
WHEREAS, the Company, EVI Arrow, Inc., a Delaware corporation and a
wholly owned subsidiary of the Company ("EVI Arrow"), EVI Watson Packers, Inc.,
a Delaware corporation and a wholly owned subsidiary of the Company ("EVI
Watson"), and the Trustee executed a Second Supplemental Indenture (the "Second
Supplemental Indenture"), dated and effective as of December 6, 1996, pursuant
to which EVI Arrow and EVI Watson became Subsidiary Guarantors and agreed to
unconditionally guarantee the Indenture Obligations;
WHEREAS, the Company, Ercon, Inc., a Delaware corporation and a wholly
owned subsidiary of the Company ("Ercon"), and the Trustee executed a Third
Supplemental Indenture (the "Third Supplemental Indenture"), dated and
effective as of May 1, 1997, pursuant to which Ercon became a Subsidiary
Guarantor and agreed to unconditionally guarantee the Indenture Obligations;
WHEREAS, the Company, XLS Holding, Inc., a Texas corporation and wholly
owned subsidiary of the Company ("XLS"), XL Systems, Inc., a Texas corporation
and wholly owned subsidiary of XLS ("XL Systems"), and the Trustee executed a
Fourth Supplemental Indenture (the "Fourth Supplemental Indenture"), dated and
effective as of August 25, 1997, pursuant to which XLS and XL Systems became
Subsidiary Guarantors and agreed to unconditionally guarantee the Indenture
Obligations (the Original Indenture, as supplemented by the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture
and the Fourth Supplemental Indenture, is hereinafter referred to as the
"Indenture");
WHEREAS, Securities in the aggregate principal amount of $120,000,000
are outstanding as of the date of execution hereof;
WHEREAS, the Company, pursuant to an Offer to Purchase and Consent
Solicitation Statement dated November 14, 1997 (the "Offer/Solicitation"),
offered to purchase for cash,
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upon the terms and subject to the conditions set forth in the
Offer/Solicitation, any and all of the Securities at a cash price equal to the
present value on the date of payment of $1,038.44 per $1,000 principal amount
and all future semi-annual interest payments to March 15, 1999, which is the
first date on which the Securities are redeemable at the option of the Company,
plus accrued and unpaid interest through the payment date, minus $25 per $1,000
principal amount of the Securities, and solicited consents from Holders of the
Notes to certain proposed amendments (the "Proposed Amendments") to the
Indenture and offered to pay to each Holder of Notes validly consenting to the
Proposed Amendments prior to 5:00 p.m., New York City time on December 1, 1997,
$25 for each $1,000 principal amount of Securities so validly consenting;
WHEREAS, it is the desire of the Company and the Holders of not less
than a majority in aggregate principal amount of the Securities to make certain
changes in the provisions of the Indenture by amending the Indenture to reflect
the Proposed Amendments, which changes have been approved by a Board Resolution
of the Board of Directors of the Company and by the written consent, filed with
the Trustee, of the Holders of not less than a majority in aggregate principal
amount of the Securities outstanding; and
WHEREAS, all conditions and requirements necessary to make this
Supplement valid and binding upon the Company and enforceable against the
Company in accordance with its terms, have been performed and fulfilled;
NOW, THEREFORE, in consideration of the above premises, each of the
parties hereto agrees, for the benefit of the others and for the equal and
proportionate benefit of the Holders of the Securities, as follows:
ARTICLE 1
INCORPORATION OF INDENTURE; DEFINITIONS
1.1 Incorporation of Indenture. This Supplement constitutes a
supplement to the Indenture, and the Indenture and this Supplement shall be
read together and shall have effect so far as practicable as though all of the
provisions thereof and hereof are contained in one instrument.
1.2 Definitions. Except as otherwise expressly provided or unless
the context otherwise requires, all terms used herein that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE 2
AMENDING AND MODIFYING PROVISIONS
2.1 Amendments to Definitions.
(a) Section 1.1 of the Indenture is hereby amended by deleting
in their entirety the following definitions: "Acquired Indebtedness",
"Adjusted Net Assets", "Affiliate Transaction", "Attributable Debt",
"Authorized Agent", "Consolidated EBITDA", "Consolidated Fixed Charges",
"Consolidated Fixed Charge Coverage Ratio", "Consolidated Interest Expense",
"Consolidated Net Income", "Foreign Restricted Subsidiaries", "Funding
Guarantor", "Guarantee", "Judgment Currency", "Material Restricted
Subsidiaries", "Non-U.S. Subsidiary Guarantor", "Permitted Liens", "Reference
Period", "Restricted Payment", "Sale-Leaseback Transaction" and "Subsidiary
Guarantor".
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(b) All references in the Indenture to the terms "Guarantee"
or "Guarantees" and "Subsidiary Guarantor" or "Subsidiary Guarantors" are
hereby deleted in their entirety.
(c) The definitions of each of "Restricted Subsidiary" and
"Unrestricted Subsidiary" contained in Section 1.1 of the Indenture are hereby
amended and restated in their entirety to read as follows:
" "Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary. The Board of Directors of the Company,
by a Board Resolution, may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that, immediately after
giving effect to such designation, no Default or Event of Default
shall have occurred and be continuing."
" "Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary or (b) any Subsidiary of the Company or
of a Restricted Subsidiary that is designated as an Unrestricted
Subsidiary by a Board Resolution of the Company in accordance
with the requirements of the following sentence. The Company may
designate any Subsidiary of the Company or of a Restricted
Subsidiary (including a newly acquired or newly formed Subsidiary
of the Company or any Restricted Subsidiary) to be an
Unrestricted Subsidiary by a Board Resolution of the Company, as
evidenced by written notice thereof delivered to the Trustee, if
after giving effect to such designation, (i) such Subsidiary has
total assets of $25,000 or less, (ii) such Subsidiary does not
own or hold any Capital Stock of, or any lien on any property of,
the Company or any Restricted Subsidiary and (iii) such
Subsidiary is not liable, directly or indirectly, with respect to
any Indebtedness other than Unrestricted Subsidiary
Indebtedness."
2.2 Amendments and Modifications to Article IX.
(a) Sections 9.7, 9.8, 9.9. 9.10, 9.12, 9.14 and 9.16 of
Article IX of the Indenture are hereby deleted in their entirety.
(b) All provisions of the Indenture, as amended by this
Supplement, that relate to or reference any of Sections 9.7, 9.8, 9.9. 9.10,
9.12, 9.14 or 9.16 shall be of no further force and effect.
2.3 Deletion of Article XII.
(a) Article XII of the Indenture is hereby deleted in its
entirety.
(b) As a result of the deletion of Article XII from the
Indenture:
(i) all references to any of Article XII and Sections
12.1 through 12.11 are hereby deleted in their entirety;
(ii) Subsidiary Guarantors are no longer required under
the terms of the Indenture; and
(iii) all provisions of the Indenture, as amended by this
Supplement, that relate to or reference Subsidiary Guarantor(s) or
Guarantee(s) shall be of no further force and effect.
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2.4 Amendments to Certain Cross-References.
(a) All cross-references contained in the Indenture to Section
9.11 are hereby amended so that such cross-references are to Section 9.7.
(b) All cross-references contained in the Indenture to Section
9.13 are hereby amended so that such cross-references are to Section 9.8.
(c) All cross-references contained in the Indenture to Section
9.15 are hereby amended so that such cross-references are to Section 9.9.
(d) All cross-references contained in the Indenture to Section
9.17 are hereby amended so that such cross-references are to Section 9.10.
(e) All cross-references contained in the Indenture to Section
9.18 are hereby amended so that such cross-references are to Section 9.11.
2.5 Amendment of Exhibit A: Form of Note. Exhibit A to the
Indenture is hereby amended and restated in its entirety as set forth on
Exhibit A hereto.
2.6 Amendment of Exhibit B: Form of Exchange Note. Exhibit B to the
Indenture is hereby amended and restated in its entirety as set forth on
Exhibit B hereto.
2.7 Deletion of Exhibit E: Form of Notation on Security Relating to
Guarantee. Exhibit E to the Indenture is hereby deleted from the Indenture.
ARTICLE 3
RELEASE OF SUBSIDIARY GUARANTORS
3.1 Release. Upon the execution of this Supplement, all guarantees
by a Subsidiary Guarantor, or liabilities and obligations of a Subsidiary
Guarantor under any provision of the Indenture or contained in any document
executed in connection with the Indenture, including guarantees of payment,
guarantees of collection and all other guarantees and assurances, of Energy
Ventures Far East Limited, Ercon, EVI Arrow, EVI Oil Tools, Inc. (formerly
known as EVI-Highland Pump Company), EVI Watson, Grant Prideco, Inc. (formerly
known as Grant TFW Inc.), Prideco, Production Oil Tools, Inc., XLS and XL
Systems (collectively, the "Released Subsidiaries") with respect to the
indebtedness, liabilities and obligations of the Company or any Released
Subsidiary under the Indenture or any document executed in connection therewith
shall be terminated, extinguished, released, discharged and without further
force or effect.
3.2 Removal as Parties. Upon the execution of this Supplement to the
Indenture, each of the Released Subsidiaries shall not be deemed to be parties
to the Indenture nor considered guarantors thereof or signatories thereto.
ARTICLE 4
MISCELLANEOUS
4.1 Full Force and Effect. Except as supplemented hereby, the
Indenture and the Securities are in all respects ratified and confirmed and all
the terms and provisions thereof shall remain in full force and effect.
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4.2 The Supplement. This Supplement shall be effective as of the
date above written.
4.3 The Trustee. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Supplement.
4.4 Governing Law. This Supplement shall be governed by and
construed in accordance with the laws of the jurisdiction which govern the
Indenture and its construction.
4.5 Multiple Counterparts. This Supplement may be executed in any
number of counterparts each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
4.6 Headings for Convenience Only. The headings of the Sections of
this Supplement are used for convenience of reference only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed and their respective seals to be affixed hereunto and duly
attested all as of the day and year first above written.
EVI, INC.
By: /s/ James G. Kiley
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James G. Kiley
Vice President and
Chief Financial Officer
Attest: /s/ Frances R. Powell
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Frances R. Powell
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ William B. Dodge
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Name: William B. Dodge
--------------------------------
Title: Vice President
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Attest: /s/ R. Lorenzen
----------------------------
Name: R. Lorenzen
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Title: Senior Trust Officer
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EXHIBIT A
[FORM OF FACE OF NOTE]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND
HAS ACQUIRED THE NOTES EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN THREE
YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTES EVIDENCED HEREBY RESELL OR
OTHERWISE TRANSFER THE NOTES EVIDENCED HEREBY, EXCEPT (A) TO EVI, INC. (THE
"COMPANY"), (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE CHASE MANHATTAN BANK, AS TRUSTEE, A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE NOTES EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
SUCH TRUSTEE), OR (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE NOTES EVIDENCED HEREBY ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE NOTES EVIDENCED
HEREBY WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH NOTES, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE CHASE MANHATTAN
BANK, AS TRANSFER AGENT. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
COMPANY AND THE CHASE MANHATTAN BANK, AS TRANSFER AGENT, SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THREE YEARS FROM THE
ORIGINAL ISSUANCE OF THE NOTES EVIDENCED HEREBY. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
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EVI, INC.
10 1/4% Senior Note due 2004
No. ______________ $______________
EVI, INC. (formerly known as Energy Ventures, Inc.), a Delaware
corporation (herein called the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to __________________________________ or registered
assigns the principal sum of _______________________________ Dollars
($______________) on March 15, 2004, at the office or agency of the Company
referred to below, and to pay interest thereon on September 15, 1994, and
semiannually thereafter, on March 15 and September 15, in each year, accruing
from March 24, 1994, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 10 1/4% per annum,
until the principal hereof is paid or duly provided for. Such interest rate
may be increased under certain circumstances as provided in the Registration
Rights Agreement (as defined in the Indenture). The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Securities, as defined in such Indenture) is registered
at the close of business on the Regular Record Date for such interest, which
shall be March 1 or September 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest on this
Note which is payable, but is not punctually paid or duly provided for on any
Interest Payment Date and interest on such defaulted interest at the then
applicable interest rate borne by the Notes, to the extent lawful, shall
forthwith cease to be payable to the Holder on such Regular Record Date, and
may be paid, at the election of the Company, to the Person in whose name this
Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date to be fixed by the Trustee for the payment of
such Defaulted Interest, notice whereof shall be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Note
will be made at the office or agency of the Company maintained for that purpose
in New York, New York or at such other office or agency of the Company as may
be maintained for such purpose, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register. Interest shall
be computed on the basis of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: EVI, INC.
-------------------------
By:
------------------------------
President
Attest: [SEAL]
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Secretary
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Company
designated as its 10 1/4% Senior Notes due 2004 (herein called the "Notes"),
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $120,000,000, issued and to be issued under an
indenture (herein called the "Indenture") dated as of March 15, 1994, as
amended by the Fifth Supplemental Indenture dated December 12, 1997, between
the Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as
trustee (herein called the "Trustee," which term includes any successor Trustee
under the Indenture), to which the Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Trustee and the Holders of the Notes, and of the terms upon which
the Notes are, and are to be, authenticated and delivered. All terms used in
this Note not otherwise defined shall have the meanings assigned to them in the
Indenture.
The Notes are senior unsecured obligations of the Company ranking pari
passu with all other existing and future senior Indebtedness of the Company and
senior in right of payment to all existing and future subordinated Indebtedness
of the Company.
The Indenture contains provisions for discharge at any time of (a) the
entire indebtedness on this Note and (b) certain restrictive covenants and
certain Events of Default, in each case upon compliance with certain conditions
set forth therein.
The Notes are subject to redemption upon not less than 30 days', but
not more than 60 days', prior notice by first class mail, at any time on or
after March 15, 1999, as a whole or in part, at the election of the Company, at
a Redemption Price equal to the percentage of the principal amount set forth
below if redeemed during the 12-month period beginning March 15 of the years
indicated below, in each case together with
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accrued interest to the Redemption Date (subject to the right of Holders of
record on relevant Regular Record Dates to receive interest due on an Interest
Payment Date):
Redemption
Year Price
---- ----------
1999 103.844%
2000 102.563%
2001 101.281%
2002 and thereafter 100.000%
Notes (or portions thereof) for whose redemption and payment provision is made
in accordance with the Indenture shall cease to bear interest from and after
the date fixed for redemption. If fewer than all of the Notes are to be
redeemed, the Trustee shall select the Notes or portions thereof (in integral
multiples of $1,000) to be redeemed by lot or pro rata or by such other method
as it shall deem fair and reasonable. In the event of redemption of this Note
in part only, a new Note or Notes for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and its Restricted Subsidiaries to make Asset
Dispositions or merge or consolidate with, or transfer all or substantially all
of their assets to, any other Person. If a Change of Control occurs at any
time, each Holder shall have the right to require that the Company repurchase
such Holder's Notes, in whole or in part, in integral multiples of $1,000, at a
purchase price in cash in an amount equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase. In
the event of certain Asset Dispositions, the Company may be required to make a
Repurchase Offer to purchase Notes having an aggregate principal amount equal
to the Excess Proceeds at a purchase price equal to 100% of their principal
amount plus accrued and unpaid interest, if any, to the Repurchase Date.
Subject to certain limitations in the Indenture, if an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then Outstanding Notes may, by written notice to the
Company, declare all the Notes to be due and payable immediately, except that
in the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization relating to the Company or any of its Restricted
Subsidiaries, the Notes shall become due and payable immediately without
further action or notice.
The holders of a majority of the outstanding principal amount of the
Notes, by written notice to the Trustee, may rescind and annul an acceleration
and its consequences if (a) the Company has paid or deposited with the Trustee
a sum sufficient to pay (i) all overdue installments of interest on all the
Notes, (ii) the principal of, and premium, if any, on any Notes that have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in the Notes, (iii) to the
extent that payment of such interest is lawful, interest on the defaulted
interest at the rate or rates prescribed therefor in the Notes, and (iv) all
money paid or advanced by the Trustee under the Indenture and the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; (b) all existing Events of Default, other than the nonpayment of
principal of or interest on the Notes that have become due solely because of
the acceleration, have been cured or waived; (c) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction; and
(d) the Company has delivered an Officers' Certificate to the Trustee to the
effect of clauses (b) and (c) of this sentence.
Subject to certain exceptions, the Indenture may be amended or
modified at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, and any past default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding. Any such consent or waiver by or
on behalf of the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
regardless of whether notation of such consent or waiver is made upon this
Note. Without notice to or the consent of any Holder, the Company and the
Trustee may amend or supplement the Indenture to cure any ambiguity, defect or
inconsistency, to comply with the successor corporation provisions of the
Indenture, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to comply with any requirement to maintain qualification of
the Indenture under the Trust Indenture Act of 1939, or to make any change that
does not adversely affect the rights of any Holders of the Notes.
The Holder of any Note shall have the right on the terms stated in the
Indenture, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and interest on such Note on the stated
maturity therefor and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without consent of such Holder.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
New York, New York, or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made to the Holders for any registration of
transfer or exchange or redemption of Notes, but, with respect to an exchange
or transfer, the
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Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
The laws of the State of New York shall govern this Note without
regard to principles of conflicts of law.
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ASSIGNMENT
(To be executed by the registered holder
if such holder desires to transfer this Note)
FOR VALUE RECEIVED _______________________________________ hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------
(Please print name and address of transferee)
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint _______ Attorney to transfer this Note on
the Security Register, with full power of substitution.
Dated:
------------------------------------
Signature
Signature Guaranteed:
------------------------------------
NOTICE: The signature to the foregoing Assignment must correspond to the name
as written upon the face of this Note in every particular, without alteration
or any change whatsoever.
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17
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section [ ] 9.8 [ ] 9.9 (check appropriate box) of
the Indenture, the undersigned hereby elects to have this Note, or portion
hereof in the principal amount designated below, repurchased by the Company, in
accordance with the terms of this Note and such Section.
2. The undersigned hereby directs that any new Note representing
any principal amount hereof that is not to be repurchased in accordance with
these instructions be issued and delivered to the registered Holder hereof,
unless a different name is indicated below.
Dated:
----------
Fill in for registration of new
Note if to be issued otherwise
than to the registered Holder.
--------------------------------
Signature
Signature Guaranteed:
- - - - - - - - - - - - - - - --------------------------------
Name
--------------------------------
- - - - - - - - - - - - - - - --------------------------------
Address Principal amount to be redeemed
(in an integral multiple of
$1,000, if less than all):
$
- - - - - - - - - - - - - - - -------------------------------- ----------------
(Please print name and address,
including zip code number)
NOTICE: The signature to the foregoing Election must correspond to the name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within mentioned
Indenture.
Dated: THE CHASE MANHATTAN BANK,
--------------------- as Trustee
By:
-------------------------------
Authorized Officer
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19
CERTIFICATE TO BE DELIVERED UPON [ ] EXCHANGE OF A BENEFICIAL INTEREST IN THE
GLOBAL SECURITY FOR DEFINITIVE SECURITIES OR [ ] EXCHANGE OR REGISTRATION OF
TRANSFER OF DEFINITIVE SECURITIES
Re: 10 1/4% Senior Notes Due 2004 ("Notes") of EVI, Inc.
This Certificate relates to $_____________ principal amount of Notes
(such designated series hereinafter referred to as the "Securities") currently
registered in ________ book-entry or ____________ definitive form in the name
of __________________________ (the "Transferor").
All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Indenture relating to the Securities.
The Transferor or Transferee:
[ ] has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Security held by the
Depository or the Securities Custodian a Definitive Security or Securities of
authorized denominations and an aggregate principal amount equal to its
beneficial interest in such Global Security (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or
register the transfer of a Definitive Security or Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify as follows:
(1) [ ] Such Security is being transferred to EVI, Inc.
(2) [ ] Such Security is being acquired for its own account,
without transfer.
(3) [ ] Such Security is being transferred pursuant to an
effective registration statement under the Securities Act.
(4) [ ] Such Security is being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act)
in accordance with Rule 144A under the Securities Act.
(5) [ ] Such Security is being transferred pursuant to the
exemption from the registration requirements of the Securities Act
provided by Regulation S thereunder.*
(6) [ ] Such Security is being transferred to an Institutional
Accredited Investor that has furnished to the Trustee a signed letter
containing certain
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representations and agreements (the form of which can be obtained from
the Trustee).*
(7) [ ] Such Security is being transferred pursuant to another
available exemption from the registration requirements of the
Securities Act.*
* If box (5), (6) or (7) is checked, such transfer is subject to the
Transferor's having previously furnished to the Company and the Trustee such
certifications, legal opinions or other information requested to confirm that
such transfer is being made pursuant to an exemption from, or not in a
transaction subject to, the registration requirements of the Securities Act,
such as the exemption provided by Rule 144 thereunder.
By:
----------------------------
Date:
-----------------------------
To be dated the date of
presentation or surrender
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EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
EVI, INC.
10 1/4% Senior Note due 2004
No. ______________ $______________
EVI, INC. (formerly known as Energy Ventures, Inc.), a Delaware
corporation (herein called the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to __________________________________ or registered
assigns the principal sum of _______________________________ Dollars
($______________) on March 15, 2004, at the office or agency of the Company
referred to below, and to pay interest thereon on September 15, 1994, and
semiannually thereafter, on March 15 and September 15, in each year, accruing
from March 24, 1994, or from the most recent Interest Payment Date to which
interest on this Note, or any other Security for which this Note may have been
issued or exchanged, has been paid or duly provided for, at the rate of 10 1/4%
per annum, until the principal hereof is paid or duly provided for. Such
interest rate may be increased under certain circumstances as provided in the
Registration Rights Agreement (as defined in the Indenture). The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Securities, as defined in such Indenture) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest on this Note which is payable, but is not punctually paid or duly
provided for on any Interest Payment Date and interest on such defaulted
interest at the then applicable interest rate borne by the Notes, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid, at the election of the Company, to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date to be fixed by the Trustee for
the payment of such Defaulted Interest, notice whereof shall be given to
Holders of Notes not less than 10 days prior to such Special Record Date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. Payment of the principal of (and premium, if any)
and interest on this Note will be made at the office or agency of the Company
maintained for that purpose in New York, New York or at such other office or
agency of the Company as may be maintained for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register. Interest shall be computed on the basis of a 360-day year
of twelve 30-day months.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: EVI, INC.
------------------------
By:
----------------------------------
President
Attest: [SEAL]
- - - - - - - - - - - - - - - ------------------------------
Secretary
[FORM OF REVERSE OF EXCHANGE NOTE]
This Note is one of a duly authorized issue of Notes of the Company
designated as its 10 1/4% Senior Notes due 2004, Series B (herein called the
"Notes"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $120,000,000, issued and to be issued
under an indenture (herein called the "Indenture") dated as of March 15, 1994,
as amended by the Fifth Supplemental Indenture dated December 12, 1997, between
the Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as
trustee (herein called the "Trustee," which term includes any successor Trustee
under the Indenture), to which the Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Trustee and the Holders of the Notes, and of the terms upon which
the Notes are, and are to be, authenticated and delivered. All terms used in
this Note not otherwise defined shall have the meanings assigned to them in the
Indenture.
The Notes are senior unsecured obligations of the Company ranking pari
passu with all other existing and future senior Indebtedness of the Company and
senior in right of payment to all existing and future subordinated Indebtedness
of the Company.
The Indenture contains provisions for discharge at any time of (a) the
entire indebtedness on this Note and (b) certain restrictive covenants and
certain Events of Default, in each case upon compliance with certain conditions
set forth therein.
The Notes are subject to redemption upon not less than 30 days', but
not more than 60 days', prior notice by first class mail, at any time on or
after March 15, 1999, as a whole or in part, at the election of the Company, at
a Redemption Price equal to the percentage of the principal amount set forth
below if redeemed during the 12-month period beginning March 15 of the years
indicated below, in each case together with
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accrued interest to the Redemption Date (subject to the right of Holders of
record on relevant Regular Record Dates to receive interest due on an Interest
Payment Date):
Redemption
Year Price
---- ----------
1999 103.844%
2000 102.563%
2001 101.281%
2002 and thereafter 100.000%
Notes (or portions thereof) for whose redemption and payment provision is made
in accordance with the Indenture shall cease to bear interest from and after
the date fixed for redemption. If fewer than all of the Notes are to be
redeemed, the Trustee shall select the Notes or portions thereof (in integral
multiples of $1,000) to be redeemed by lot or pro rata or by such other method
as it shall deem fair and reasonable. In the event of redemption of this Note
in part only, a new Note or Notes for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and its Restricted Subsidiaries to make Asset
Dispositions or merge or consolidate with, or transfer all or substantially all
of their assets to, any other Person. If a Change of Control occurs at any
time, each Holder shall have the right to require that the Company repurchase
such Holder's Notes, in whole or in part, in integral multiples of $1,000, at a
purchase price in cash in an amount equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase. In
the event of certain Asset Dispositions, the Company may be required to make a
Repurchase Offer to purchase Notes having an aggregate principal amount equal
to the Excess Proceeds at a purchase price equal to 100% of their principal
amount plus accrued and unpaid interest, if any, to the Repurchase Date.
Subject to certain limitations in the Indenture, if an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then Outstanding Notes may, by written notice to the
Company, declare all the Notes to be due and payable immediately, except that
in the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization relating to the Company or any of its Restricted
Subsidiaries, the Notes shall become due and payable immediately without
further action or notice.
The holders of a majority of the outstanding principal amount of the
Notes, by written notice to the Trustee, may rescind and annul an acceleration
and its consequences if (a) the Company has paid or deposited with the Trustee
a sum sufficient to pay (i) all overdue installments of interest on all the
Notes, (ii) the principal of, and premium, if any, on any Notes that have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in the Notes, (iii) to the
extent that payment of such interest is lawful, interest on the defaulted
interest at the rate or rates prescribed therefor in the Notes, and (iv) all
money paid or advanced by the Trustee under the Indenture and the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; (b) all existing Events of Default, other than the nonpayment of
principal of or interest on the Notes that have become due solely because of
the acceleration, have been cured or waived; (c) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction; and
(d) the Company has delivered an Officers' Certificate to the Trustee to the
effect of clauses (b) and (c) of this sentence.
Subject to certain exceptions, the Indenture may be amended or
modified at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, and any past default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding. Any such consent or waiver by or
on behalf of the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
regardless of whether notation of such consent or waiver is made upon this
Note. Without notice to or the consent of any Holder, the Company and the
Trustee may amend or supplement the Indenture to cure any ambiguity, defect or
inconsistency, to comply with the successor corporation provisions of the
Indenture, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to comply with any requirement to maintain qualification of
the Indenture under the Trust Indenture Act of 1939, or to make any change that
does not adversely affect the rights of any Holders of the Notes.
The Holder of any Note shall have the right on the terms stated in the
Indenture, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and interest on such Note on the stated
maturity therefor and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without consent of such Holder.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
New York, New York, or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made to the Holders for any registration of
transfer or exchange or redemption of Notes, but, with respect to an exchange
or transfer, the
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Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
The laws of the State of New York shall govern this Note without
regard to principles of conflicts of law.
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ASSIGNMENT
(To be executed by the registered holder
if such holder desires to transfer this Note)
FOR VALUE RECEIVED _______________________________________ hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------
(Please print name and address of transferee)
- - - - - - - - - - - - - - - --------------------------------------------------------------------------------
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint _______ Attorney to transfer this Note on
the Security Register, with full power of substitution.
Dated:
--------------------------------------
Signature
Signature Guaranteed:
--------------------------------------
NOTICE: The signature to the foregoing Assignment must correspond to the name
as written upon the face of this Note in every particular, without alteration
or any change whatsoever.
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27
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section [ ] 9.8 [ ] 9.9 (check appropriate box)
of the Indenture, the undersigned hereby elects to have this Note, or portion
hereof in the principal amount designated below, repurchased by the Company, in
accordance with the terms of this Note and such Section.
2. The undersigned hereby directs that any new Note representing
any principal amount hereof that is not to be repurchased in accordance with
these instructions be issued and delivered to the registered Holder hereof,
unless a different name is indicated below.
Dated:
----------
Fill in for registration of new
Note if to be issued otherwise
than to the registered Holder.
------------------------------------
Signature
Signature Guaranteed:
- - - - - - - - - - - - - - - -------------------------------
Name
------------------------------------
- - - - - - - - - - - - - - - -------------------------------
Address Principal amount to be redeemed
(in an integral multiple of $1,000,
if less than all):
$
- - - - - - - - - - - - - - - ------------------------------- ----------------
(Please print name and address,
including zip code number)
NOTICE: The signature to the foregoing Election must correspond to the name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within mentioned
Indenture.
Dated: THE CHASE MANHATTAN BANK,
------------------ as Trustee
By:
---------------------------------
Authorized Officer
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